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District Court 30 June 2023

R v TK

[2023] NSWDC 663

Sexual offences

Citation: R v TK [2023] NSWDC 663
Court: District Court of New South Wales
Date: 30 June 2023
Judge: Baker SC DCJ

Background

The accused faced trial on a charge of sexual intercourse without consent, allegedly committed against his former partner. In advance of trial, the accused issued a subpoena on the NSW Department of Communities and Justice (DCJ) seeking production of a range of documents, including reports made to the DCJ by a third party (referred to as BW) about the complainant and her children.

The DCJ moved to set aside part of the subpoena, relying on section 29(1)(e) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). That provision protects reports made in good faith to the Secretary of the DCJ from compelled production in proceedings. The Secretary's delegate had certified, under section 29(1A), that three documents on the relevant file were reports to which section 29 applied.

The accused's position was that section 29 only shields reports made "in good faith," and that he was entitled to challenge whether BW's reports met that threshold. The proceedings therefore turned on whether the accused could rebut the statutory presumption of good faith, and whether the evidence he relied on was sufficient to do so.

  • Whether the section 29(1A) certificate created a rebuttable presumption of good faith, and if so, what standard of evidence was required to displace it.
  • Which party bore the onus of establishing that the reports were (or were not) made in good faith.
  • Whether the evidence advanced by the accused was sufficient to constitute "evidence to the contrary" for the purposes of section 29(1A).
  • Whether production of the certified documents would be prohibited under section 29(1)(e), and whether the subpoena should be set aside on that basis.

Decision

An advance ruling had already been delivered by Judge Payne prior to the hearing before Baker SC DCJ. That ruling determined that either party may adduce evidence on the good faith question; that the identity of a report-maker may be disclosed in that process; that in proceedings outside section 29(1)(d), the onus rests first on the DCJ to establish good faith and then shifts to the accused; and that the applicable standard is "evidence to the contrary" under section 29(1A), assessed in light of the statutory context and particular facts rather than the civil or criminal standard.

The accused relied on four categories of evidence to challenge good faith: documents suggesting BW had a controlling influence over the complainant and a motive to make false reports; a hearsay assertion attributed to the respondent that BW was not concerned about reporting the complainant when she had done nothing wrong; evidence about the dynamics of the relationship between the complainant and BW; and an apparent discrepancy between the complainant's statement (as at 3 or 4 January 2020, she had not complained to BW about the assault) and BW's later statement to DCJ (on 11 January 2020) that the complainant had disclosed the assault to her.

Baker SC DCJ examined each category and found none, individually or in combination, amounted to "evidence to the contrary." The hearsay assertion was characterised as remote and self-serving. The relationship dynamics evidence was consistent with the accused's theory but not probative of bad faith. The apparent discrepancy between the two statements was explicable by the passage of time and was not shown to reflect dishonesty or misleading conduct on BW's part.

The court concluded the accused had not rebutted the presumption of good faith arising from the section 29(1A) certificate. The protection in section 29(1)(e) therefore applied, and paragraph two of the subpoena was set aside.

Orders Made

  • Paragraph two of the schedule to the subpoena for production issued on behalf of the accused on 17 October 2022 (addressed to the Department of Communities and Justice and returnable 19 October 2022) was set aside.

Key Takeaways

  • Under section 29(1A) of the Children and Young Persons (Care and Protection) Act 1998, a certificate signed by the Secretary of the DCJ creates a presumption that a document is a protected report, and that presumption can only be displaced by "evidence to the contrary," a standard that sits below the civil and criminal standards but nonetheless requires something more than remote, self-serving, or merely consistent evidence.
  • The District Court confirmed that the good faith qualification in section 29(1) is a genuine gateway: where a party challenges good faith, the DCJ bears the initial onus of establishing it, after which the burden shifts to the challenging party.
  • A party challenging good faith may adduce evidence that identifies or tends to identify the report-maker, and either party may raise the good faith question both in subpoena proceedings and at trial (for example, in tendency applications or cross-examination).
  • Hearsay assertions advanced by the accused and evidence of relationship dynamics were treated as insufficient to constitute "evidence to the contrary," particularly where an apparent factual discrepancy between two statements could be explained by the passage of time.
  • Proceedings of this kind are subject to orders for closed court hearings and interim suppression of the report-maker's identity, consistent with the confidentiality protections in section 29(1)(f).

Legislation and Cases Referenced

Legislation:
- Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 29, 29(1A)
- Criminal Procedure Act 1986 (NSW), s 227
- Evidence Act 1995 (NSW), s 192A

Cases:
- Agar v McCabe [2015] VSC 378
- Bosanac v Commissioner of Taxation & Anor (2022) 405 ALR 424
- Bropho v Human Rights and Equal Opportunity Commission & Anors [2004] FCAFC 16
- Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; 168 A Crim R 566
- Roads and Traffic Authority of New South Wales v Michell [2006] NSWSC 194
- RTA of NSW v Nichols [2005] NSWSC 946
- Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209
- Secretary, Department of Family and Community Services v ZL [2019] NSWCCA 135